[Federal Register Volume 77, Number 29 (Monday, February 13, 2012)]
[Proposed Rules]
[Pages 7562-7564]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-3265]
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DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration
49 CFR Parts 385, 390, and 395
[Docket No. FMCSA-2010-0167]
RIN 2126-AB20
Electronic On-Board Recorders and Hours of Service Supporting
Documents
AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.
ACTION: Notice of intent.
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SUMMARY: FMCSA announces its intent to move forward with the Electronic
On-Board Recorders and Hours of Service Supporting Documents rulemaking
(EOBR 2) by preparing a Supplemental Notice of Proposed Rulemaking
(SNPRM). To augment the Agency's efforts to obtain comprehensive data
to support this SNPRM, FMCSA plans to do the following: hold listening
sessions on the issue of driver harassment; task the Motor Carrier
Safety Advisory Committee (MCSAC) to assist in developing material to
support this
[[Page 7563]]
rulemaking, including technical specifications for EOBRs and their
potential to be used to harass drivers; and conduct research by
surveying drivers, carriers, and vendors regarding harassment issues.
ADDRESSES: Comments and material received from the public as well as
documents mentioned in this notice are available for inspection or
copying in the docket, Docket No. FMCSA-2010-0167, and at the Docket
Management Facility, U.S. Department of Transportation, Ground floor,
Room W12-140, 1200 New Jersey Avenue SE., Washington, DC, between 9
a.m. and 5 p.m., e.t., Monday through Friday, except Federal holidays.
FOR FURTHER INFORMATION CONTACT: Ms. Deborah M. Freund, Vehicle and
Roadside Operations Division, Office of Bus and Truck Standards and
Operations, Federal Motor Carrier Safety Administration, 1200 New
Jersey Avenue SE., Washington, DC 20590-0001 or by telephone at (202)
366-5370.
SUPPLEMENTARY INFORMATION:
Regulatory Background
The following discussion summarizes the recent regulatory history
of the agency's EOBR initiatives.\1\
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\1\ For a more detailed history of the program containing the
initial regulatory actions by the agency see EOBR 1, discussed below
in this section (75 FR 17208).
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EOBR 1
On April 5, 2010, the Agency issued a final rule (75 FR 17208) that
provided new technical requirements for EOBRs. The EOBR final rule also
required the limited, remedial use of EOBRs by any motor carrier found,
during a single compliance review, to have a 10 percent violation rate
for any hours-of-service (HOS) regulation listed in a new Appendix C of
49 CFR part 385. The final rule required EOBRs on all of the motor
carrier's commercial motor vehicles (CMVs) for a period of 2 years. The
compliance date for the final rule was June 4, 2012.
The Owner-Operator Independent Drivers Association (OOIDA)
challenged the final rule in the United States Court of Appeals for the
Seventh Circuit. OOIDA raised several concerns relating to EOBRs and
their potential use for driver harassment. On August 26, 2011, the
Court vacated the entire final rule. Owner-Operator Indep. Drivers
Ass'n et al. v. Fed. Motor Carrier Safety Admin., 656 F.3d. 580 (7th
Cir. 2011). The Court held that, contrary to statutory requirements,
the Agency failed to address the issue of driver harassment, including
how EOBRs could potentially be used to harass drivers and ways to
ensure that EOBRs were not used to harass drivers. The basis for the
decision was FMCSA's failure to directly address a requirement in 49
U.S.C. 31137(a) which reads as follows:
USE OF MONITORING DEVICES. If the Secretary of Transportation
prescribes a regulation about the use of monitoring devices on
commercial motor vehicles to increase compliance by operators of the
vehicles with hours of service regulations of the Secretary, the
regulation shall ensure that the devices are not used to harass
vehicle operators. However, the devices may be used to monitor
productivity of the operators. (Emphasis added.)).
The court's expectation about how the Agency should address
harassment and productivity under the statutory directive included the
following:
``In addition, an adequate explanation that addresses the
distinction between productivity and harassment must also describe
what precisely it is that will prevent harassment from occurring.
The Agency needs to consider what types of harassment already exist,
how frequently and to what extent harassment happens, and how an
electronic device capable of contemporaneous transmission of
information to a motor carrier will guard against (or fail to guard
against) harassment. A study of these problems with EOBRs already in
use, and a comparison with carriers that do not use these devices,
might be one obvious way to measure any effect that requiring EOBRs
might have on driver harassment'' (Id. at 588-89).
The Court also noted that the Agency had not estimated the safety
benefits of EOBRs currently in use and how much EOBRs increased
compliance.
As a result of the vacatur, carriers relying on electronic devices
to monitor HOS compliance are currently governed by the Agency's
previous rules regarding the use of automatic on-board recording
devices (49 CFR 395.15). The requirements set forth in 49 CFR 395.15,
were not affected by the Seventh Circuit's decision regarding the
technical specifications set out in 49 CFR 395.16 in the EOBR 1 Final
Rule.
EOBR 2
On February 1, 2011, the Agency published a notice of proposed
rulemaking (NPRM) that proposed to expand the scope of EOBR use to a
broader population of motor carriers (EOBR 2) (76 FR 5537). The EOBR 2
NPRM proposed that, within 3 years of the effective date of the final
rule, all motor carriers currently required to maintain records of duty
status (RODS) for HOS recordkeeping would be required to use EOBRs.
Due to the pending EOBR 1 litigation, the Agency extended the EOBR
2 public comment period and, in recognition of issues raised in oral
argument before the Seventh Circuit, expressly invited comment on the
issue of driver harassment. A notice published on March 10, 2011 (76 FR
13121) extended the public comment period for the EOBR 2 NPRM to May
23, 2011. On April 13, 2011, the Agency published a notice specifically
inviting comments on the EOBR2 rulemaking to address harassment (76 FR
20611). In light of the litigation challenging the Agency's treatment
of driver harassment in EOBR 1, FMCSA wished to ensure that interested
parties had a full opportunity to consider the harassment issue in the
active EOBR 2 rulemaking.
Planned Activities
EOBR 2 SNPRM
Because the EOBR 2 rule relied on the technical specifications
provided in EOBR 1, where this final rule was vacated, the Agency must
again proposed and seek comment on new technical standards into the CFR
before any final rule concerning use of an EOBR device is issued. These
proposed technical standards would take into account the official MCSAC
recommendations, as well as public comments.
FMCSA takes this opportunity to declare its intention to proceed
with the EOBR 2 rulemaking. The Agency is preparing an SNPRM to propose
technical standards for an EOBR, address driver harassment issues,
propose requirements for retaining HOS supporting documents, and
provide clarification and request further comments on several of the
proposals. Additionally, the Agency will hold public listening
sessions; work with its Motor Carrier Safety Advisory Committee
(MCSAC); and use driver, carrier, and vendor surveys to obtain all the
stakeholder information needed to discuss issues involving driver
harassment.
Public Listening Sessions
FMCSA will hold public listening sessions to discuss issues
involving the driver harassment issue. The public will have an
opportunity to speak about this issue and provide the Agency with
information on how to address harassment. All public comments will be
placed in the docket of this rulemaking. Details concerning the
schedule and locations for the listening sessions, as well as
procedural information for participants, will follow in a subsequent
Federal Register notice.
[[Page 7564]]
Motor Carrier Safety Advisory Committee Task
MCSAC is an advisory committee to FMCSA.
In June 2011, a MCSAC subcommittee began work on Task 11-04
(Electronic On-Board Recorders (EOBR) Communications Protocols,
Security, Interfaces, and Display of Hours-of-Service Data During
Driver/Vehicle Inspections and Safety Investigations). The subcommittee
examined technical issues relating to the electronic transfer of HOS
information from CMVs to law enforcement personnel at the roadside
raised by the EOBR 1 final rule. The subcommittee met several times and
made its final report to the full committee on December 5 and 6, 2011.
On December 16, 2011, the full committee made an official
recommendation to FMCSA.
FMCSA will task MCSAC to make recommendations related to the EOBR2
rulemaking. Details will follow in a subsequent Federal Register
notice.
More information about these MCSAC meetings, recommendations, and
task orders can be found at http://mcsac.fmcsa.dot.gov/meeting.htm.
Research
Subject to Office of Management and Budget approval, FMCSA will
initiate OMB-approved survey of drivers regarding harassment
experiences and concerns and OMB-approved surveys for carriers and
vendors regarding harassment. Details will follow in subsequent Federal
Register notices.
EOBR 1 Final Rule Withdrawal
Based on the Seventh Circuit's decision, the Agency plans to
publish a final rule in the Federal Register announcing the removal of
the regulatory text in 49 CFR parts 350, 385, 395, 396 adopted in EOBR
1 and subsequently vacated by the Seventh Circuit decision. This will
complete the actions required by the Court.
Issued on: February 7, 2012.
Anne S. Ferro,
Administrator.
[FR Doc. 2012-3265 Filed 2-10-12; 8:45 am]
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